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Information & Legislation

The following is for guidance only, Black Katz are not solicitors and as such do not provide legal advice.

Tenants Fees Ban 1st June 2019

The Tenant Fees Act 2019 1st June 2019. From this date you cannot require a tenant to make certain payments in connection with a tenancy.

The new rules apply to Assured Shorthold Tenancies, Licence to Occupy and Student Lets.  

The Act does not apply to contractual tenancies which would be used if the tenancy is for a company let or non-assured tenancies.

You can only charge the tenants.

Permitted Payment

Rent

A refundable tenancy deposit (capped at five weeks’ rent if the yearly rent is less than £50,000 or capped at six weeks’ rent if the yearly rent is £50,000 or more).

A refundable holding deposit (capped at no more than one week’s rent).

The following ‘default’ fees, which must be written into the tenancy agreement:

i.Payments in the event of default for a lost key or security device only if such payments are reasonable and a landlord or letting agent on their behalf must be able to produce written evidence of the reasonable and properly incurred costs.

ii.Interest for late payment of rent (if the rent is unpaid for more than 14 days). The rate of interest must not exceed the rate of 3% above the Bank of England base rate.

Utilities/Communication services/TV Licence / Council Tax (landlords or letting agents on their behalf must only charge the billed amount).

£50 fee for the landlord’s consent for a variation, assignment or novation of a tenancy agreement which is requested by the tenant (excluding renewals or varying the term of the tenancy). A landlord may be able to charge more if such costs are reasonable and have been properly incurred and written evidence (invoice or receipt) is produced to the tenant.

 An early termination fee (in the event the tenant wishes to terminate early but not where the tenant is exercising a break clause). The termination fee must reflect the actual loss suffered by the landlord (for example, loss of rent the landlord would have received) or as a letting agent (referencing and marketing costs).

If you have a contract that was signed  before 1st June 2019, you can still charge any fees that are mentioned in that contract up until 31st May 2020. From 1st June 2020, any prohibited payments listed in any tenancy agreement won’t be enforceable.

Deposits

From 1st June, the level of tenancy deposit you can ask a tenant to pay will be capped at a maximum of 5 weeks rent for the property is less than £50,000, and up to 6 weeks for the property is £50,000 or above. If you renew a contract after 1st June 2019, and the tenant paid more than the permitted deposit amount, you must repay any over payment.

Prohibited Payments

Landlords or letting agents are prohibited from charging tenants any fees which are not permitted payments.

a. Letting fees cannot be passed on to a tenant and must be fronted entirely by the landlord. Letting fees include:

  • Viewing fees
  • Preparation of contracts
  • Inventories
  • Check In and Check Outs
  • Testing of Smoke Detectors
  • Tenancy Deposit Protection
  • Right to Rent Checks
  • Referencing
  • Administration Fees
  • Credit checks
  • Key collection

 Landlords cannot charge a tenant for gardening or professional cleaning services (unless this is included in the rent).

 Landlords cannot charge a higher deposit for pets but a pet rent can be charged.

The amount of a security and/or holding deposit which exceeds the caps referred to above will be a prohibited payment.

Payments in the event of default (unless they are permitted payments), for example a fixed penalty charge for a missed appointment with a contractor.

Landlords or letting agents on their behalf are prohibited from charging increased rents for an initial period to offset the payments which are prohibited under the TFA 2019.

A breach of the fees ban will be a civil offence with a financial penalty of up to £5,000.
Each breach of the ban will result in a separate fine. Successive breaches of the ban within five years (where a financial penalty has been issued or conviction secured in respect of the earlier breach) would be a criminal offence with an unlimited fine. The Enforcement Authority may impose a financial penalty of up to £30,000 as an alternative to criminal prosecution.

NB: Any financial penalty is on top of a requirement for landlords and letting agents to repay any Prohibited Payments or Holding Deposit received.

You cannot evict a tenant using the section 21 eviction procedure until you have repaid any unlawfully charged fees or returned an unlawfully retained holding deposit. All other rules around the application of the section 21 evictions procedure will continue to apply.

If you are uncertain as to whether a charge is permitted, you should consider contacting Citizens Advice or obtaining legal advice.

 

For more information go to

https://www.gov.uk/government/publications/tenant-fees-act-2019-guidance

New Legal Update

This area allows you to access up-to-date information on lettings. The area is split into two; Legal Hot Points area which specifically targets the current changes in the law while the FAQ's provide advice and tips for landlords and tenants. We hope you find this information of use.

We would advise Landlords to read the following and to take action to comply.

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Working alarms save lives in the event of a fire in your home you are at least four times more likely to die if there is no working smoke alarm.

Private sector landlords are required from 1 October 2015 to have at least one smoke alarm installed on every storey of their properties and a carbon monoxide alarm in any room containing a solid fuel burning appliance (e.g. a coal, fire, wood burning stove). After that, the landlord must make sure the alarms are in working order at the start of each new tenancy.

The requirements will be enforced by local authorities who can impose a fine of up to £5,000 where a landlord fails to comply with a remedial notice.

The Department for Communities and Local Government has just issued the explanatory booklets below which you will find helpful in understanding the Regulations.
https://www.gov.uk/government/publications/smoke-and-carbon-monoxide-alarms-explanatory-booklet-for-landlords/the-smoke-and-carbon-monoxide-alarm-england-regulations-2015-qa-booklet-for-the-private-rented-sector-landlords-and-tenants

This area allows you to access up-to-date information on lettings. The area is split into two; Legal Hot Points area which specifically targets the current changes in the law while the FAQ's provide advice and tips for landlords and tenants. We hope you find this information of use.

Disclaimer: The following is only our opinion and is written without liability to Black Katz whatsoever. For clarification of any issues we strongly advise that you contact your solicitor or local authority or visit the website www.gov.uk

Energy Performance Certificate

All rental properties with a new tenancy in England and Wales will be required to have an Energy Performance Certificate (EPC).

  • a landlord will need to provide an EPC, which will be valid for ten years, to prospective tenants the first time you let or re-let your property.

Please note From 1 April 2018, landlords of relevant domestic private rented properties may not grant a tenancy to new or existing tenants if their property has an EPC rating of band F or G (as shown on a valid Energy Performance Certificate for the property);

What is an Energy Performance Certificate?

The Energy Performance Certificate tells you how efficient and environmentally friendly your property is. The energy efficiency is worked out on a scale of A-G.

A being the most efficient and G being the least.

Part of the EPC is a recommendation report which will list the potential rating that your home could achieve, if you made changes. The report lists improvements that you could carry out and how this would change the energy amd carbon emission rating of the property.

  • *You can use this information to help cut our fuel bills
  • *Improve energy performances in your home.
  • *Help cut carbon emissions

Who carries out the EPC's

Energy Performance Certificate are carried out by a fully quailified Domestic Energy Assessors (DEAs). The assessor will visit your property and assess the age contruction and location of all the information that he takes down will be fed into a computor, which will calculate ratings and generate a certificate. Either yourself or your letting agent can organize this for you. Each property will require an EPC which will last for 10 years.

How do I get one?

Either yourself or your letting agent can commission one from an accredited Domestic Assessor ( DEA).

DEAs can be found in your local directories.

Tenancy Deposit Protection Scheme: Introduction

Every private Landlord in England and Wales letting private residential property is by law required to join one of four government - authorised tenancy deposit protection schemes if:

The start date of the tenancy is after 6 April 2007 (excisting tenancies prior to this date will not be effected by this legislation) The tenancy is let under an Assured Short Term tenancy agreement.

The deposit must be registered within 30 days of receipt and the tenants informed which means in reality that if you use an agent like Black Katz where the deposit is collected @ 14 days before the move-in the timescale for the landlord is actually reduced to 16 days from the date of move-in.

As we do not hold deposits we would advise you, our Landlord to look into the schemes that are on offer. If you have any problems with this procedure just contact the office that you have been dealing with and they will guide you through the whole process step by step.

 

Tenancy Deposit Protection Scheme: Why it's needed?

It was introduced to safeguard tenants' deposits which are paid in connection with Assured Shorthold Tenancies against unscrupulous landlords and agents who withhold the deposits with no justified reason, it helps to facilitate with resolving disputes over the return of the deposit. Basically the scheme has been introduced to reassure tenants that the return of the deposit is a fair deal due to the fact that the agent or landlord is a member of scheme which uses an independent adjudicator.

 

Tenancy Deposit Protection Scheme: How Does It Work?

There are two types of schemes on offer a Custodial Scheme and an Insurance based scheme.

  • Custodial Scheme - in this scheme the deposit is forwarded to a designated third party. It is then held by this party throughout the tenancy until the termination of the tenancy and is returned when all parties are happy with the appropriation of the deposit.There are no charges for Landlords to use an approved Custodial Scheme.
  • Insurance Scheme - The insurance based tenancy deposit scheme enables Landlords to hold deposits. There is a  fee to join and insurance based scheme.
  • For more information you go to www.gov.uk/tenancy-deposit-protection/overview

 

The 3 Schemes

  • The Deposit Protection Service (The DPS) - Custodial and Insured deposit protection scheme – The custodial deposit  protection scheme is free to use and open to all Landlords and Letting Agents. The service is funded entirely from the interest earned from deposits held. The Insured deposit protection scheme has no registration or annual renewal fee but charges from  £15.00 per deposit registered. The Landlord retains the deposit and protection will be provided to the tenant(s) for the duration of the tenancy. Landlords and Letting Agents will be able to register and make transactions on line. Paper forms will also be available should internet access be an issue. The scheme will be supported by a dedicated call centre and an independent dispute resolution service.
    For more information, visit www.depositprotection.com or call 0845 226 7837
  • MyDeposits - This insurance-based tenancy deposit protection scheme enables Landlords to hold deposits. The fee for joining this scheme is £20 and from £18.00 per deposit protected by the deposit protection scheme. The protection covers the duration of the tenancy and if the tenant(s) continues onto a Statutory Periodic Tenancy. A new protection fee is needed at the start of every new fixed term AST agreement.
    For more information, visit www.mydeposits.co.uk or call 0333 321 9401
  • The Dispute Service (TDS) - is an insurance-backed deposit protection and dispute resolution scheme which has been  established in 2003 to provide dispute resolution and complaints handling for the lettings industry. The scheme enables letting  agents and landlords to hold their deposits.
    There is no fee for joining this scheme but will cost from £14.70 to register a deposit.
    For more information, visit www.thedisputeservice.co.uk or call 0330 303 0030

*If you are a landlord that lives overseas you have to join the custodial deposit protection scheme.

If a deposit is not protected, the landlord will be breaking the law. The Landlord will be unable to regain possession of the property using notice-only grounds for possession under the Section 21 of the Housing Act 1988. The tenant can apply for a court order requiring the deposits to be protected, or for the prescribed information to be given to them.

If the court finds your landlord hasn’t protected your deposit, it can order the person holding the deposit to either:

  • repay it to the tenant
  • pay it into a custodial TDP scheme’s bank account within 14 days

The court may also order the landlord to pay you up to 3 times the deposit within 14 days of making the order.

You can also Contact Natasha Eddy by email tash@blackkatz.com / 0207 284 3111

 

Hmo Licensing

What are the changes?

Licensing will be broken up into 2 sections; mandatory licensing, additional licensing and selective area licensing which could be introduced by the LHA.

  • Mandatory Licensing Scheme - This applies to houses in multiple occupation (HMO’s) of three or more storeys occupied by five or more people, making up to two or more households.
  • Additional Licensing Scheme - This applies to all privately rented properties occupied by three of more people making up two or more households, regardless of the numbers of storeys in the property.
  • Selective Licensing Scheme - Please check with you local council to see if this applies to your property.

As the LHA can introduce additional licensing schemes and selective area licensing schemes landlords will need to ensure that they keep up to date with the actions of their LHA.

What are the license requirements?

All licenses will have provisions for anti-social behaviour by tenants which will ultimately be the responsibility of the landlords.

In addition to this the license will specify how many tenants can reside at the property and the minimum facilities required including the number of toilets, baths, showers and kitchens etc. for the number of tenants and the property needs to fulfill the safety requirements.

What happens if the property does not meet the standards?

If the property fails to meet the minimum standards required then the LHA may:

  • Grant a license subject to a provision being made about ensuring that extra facilities are supplied within a certain period.
  • Grant a license for a smaller number of occupants.
  • Refuse to grant a license until the standards have been met.

Are there any fees and how long does a license last?

Yes there will be a fee. The fees vary between LHA's as it is up to them to set the fees. They currently vary between £300 to £500 however it has been stated that one is quoting £1100. These licenses will be valid for five years however it may be possible to get a shorter license.

Are there any penalties?

It will be a criminal offence to operate an HMO without a license and will be subject to a fine of up to £20,000. The tenants within your property may also apply for a rent repayment order whereby the tenant can apply for the landlord to repay all the rent paid whilst the property was run as an HMO without a license, up to a years back payment can be applied for. Another restriction will be that while a Landlord operates without a license he will be unable to serve a Section 21 to regain the property.

 

Frequently Asked Questions

We believe that it is vital that both Landlords and Tenants are aware of their legal rights and obligations. Below are some essential questions and answers.

  • As a Landlord do I have to perform an annual electrical safety check on my rented property?

The Electrical Equipment (Safety) Regulations 1994 governs the safety requirements of electrical appliances. As a result Landlords and managing agents have a duty of care to ensure that the electrical appliances that they provide are safe to use. This regulation relates to both new and second hand goods; however, there is no mandatory checking period.

If a fault occurs at a later date and tenants are injured and you are taken to court you will need to provide evidence that you took reasonable steps to ensure that the appliances were safe to use. It is strongly recommended that any second hand appliances that you have are professionally tested and that all your appliances have the relevant CE symbol on them. It
would be advisable that you carry out checks on all your appliances and maintain records of when you carried out these checks, you will also need to provide all the instruction booklets for all the appliances and if you are in doubt over the condition of any appliance then get it checked by a qualified electrician.

Should an incident occur and you are found to be guilty you can be charged both with a criminal offence and with Civil offence. The criminal offence carries a maximum fine of £5,000 and/or imprisonment.

  • I have a fixed 12month contract which is due to come to term in two months time. Do I still have to provide notice to our Landlord?

At the end of a fixed term in an Assured Shorthold Tenancy, the tenancy will automatically become a periodic tenancy unless either you or your landlord has served notice or agreed to renew your tenancy. It is therefore advisable that you serve your landlord a month's written notice and the likewise for your landlord he/she should serve you the minimum of two months notice which should not expire any sooner than end of the fixed term.

In some cases your landlord may have served a section 21 at the start of the tenancy stating that at the end of the 12month period they want to take possession of the flat, in such circumstances you will not need to serve notice.

  • Can I use my deposit as my last months rent?

Deposit monies are given to landlords as a security against damage caused by the tenants during the tenancy and the     settlement of any outstanding bills left by tenants. Therefore the deposit can not be used as the last months rent, some tenants find this unfair when they have dealt with unscrupulous landlords who withhold deposits. This problem has been tackled by new legislation written into the Housing Act 2004; Tenancy Deposit Scheme will be implemented to safeguard tenants' deposits. This new legislation was due to take affect in October 2006 however the date has been postponed and a new date should hopefully be announced this July. For more information on how this scheme will work please see our Legal Hot Points column.

  •  My Landlord is withholding my deposit, what can I do?

When a tenancy ends it is normal practice for the landlord to carry out a check out of an inventory or at least an inspection of the property. Once this has occurred then the landlord can make any necessary deductions for damage to the flat or furniture or for any outstanding utility bills or rent arrears. However, the landlord can not make any deductions for normal wear and tear; he/she can not withhold your deposit without providing you a written notice of why and what for. Should you disagree with the reasons or the landlord is not providing you with a reason you should contact the tenancy deposit protection scheme that your deposit is protected with.

For further information on this please see our Legal Hot Points column.

What is the Landlord responsible for?

  • Repairing obligations to the structure and exterior of the property; heating and hot water installations, sinks and other         sanitary installations.
  • Ensuring that all gas and electrical appliances are safe.
  • Ensuring that the furniture and furnishings within the property meet the fire safety standards.

What is the Tenant responsible for?

  • Paying the rent in the agreed manner and taking proper care of the property
  • Paying the utility bills for the property as agreed with the Landlord, such as gas, electricity and telephone.
  • Paying council tax, water and sewerage charges as agreed by the Landlord.

Does a Landlord have to provide a Gas Safety Certificate for each new Tenancy?

NO. The legislation in place relating to the installation and maintenance of gas appliances (Gas Safety (Installation and Use) Regulations 1998) demands that all Landlords must ensure that any gas appliances within their rental property is inspected and passed annually by a CORGI qualified engineer. Failure to comply with the regulation carries a fine of up to £5,000 and/or imprisonment of six months (or more). The Landlord is responsible for keeping a record of all the Safety checks and provide the Tenants with a copy.

A Tenant has informed his/her Landlord about a repair, however the Landlord has failed to carry out this obligation, what are the Tenants rights?

Depending on how the disrepair occurred in the first place then the tenants rights are as follows. The Landlord is not responsible for the repairs arising from the damage caused by the Tenant. If the damage was caused by the Tenant then the Tenant would be responsible for paying and ensuring that the work is carried out. Apart from this the Tenant only has to do repairs if the terms in the Tenancy Agreement say so.

If the Tenant has tried on numerous occassion to get the Landlord to carry out his repairing obligations and has no success then he can either:

  • sue the Landlord in court
  • seek help from the local authorities as they have powers to ensure that the Landlord does the repairs
  • or in some circumstances, if the right procedure is followed then the Tenant could do the works and take the cost out of the rental payments. Tenants need to know that with holding rent would be in breach of their tenancy terms and the Landlord could take action to repossess the property.

 

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